Journal of Criminal Law and Criminology

Volume 5 | Issue 6 Article 2

1915

Classification and Definition of Crimes

Ernst Freund

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Ernst Freund, Classification and Definition of Crimes, 5 J. Am. Inst. Crim. L. & Criminology 807 (May 1914 to March 1915)

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 CLASSIFICATION AND DEFINITION OF CRIMES.
(Report of Committee D of the Institute.)
ERNST FREuNo.'
I. The codification of the criminal law.-The statutory definition
of offenses is a fundamental principle of criminalistic policy. In
continental jurisprudence it is expressed by the maxim "no punish-
ment without a statute," whieli was made part of the French Declara-
tion of Rights of 1789.
In Anglo-American jurisprudence the principle is less uniformly
as such (Tucker's Blackstone I, p. 438); in nearly all states the
criminal law is in part at least unwritten. But as early as the
Fourteenth Century the demand for the certainty of written law
gave rise to the statute of treason (25 Ed. III, 1352) ; the objection
to an unwritten common law of crimes was largely responsible for
the refusal to recognize a federal common law for the United States
as such (Tucker's Blackstone I, p. 438); in nearly all states the
criminal law has been codified, leaving to the common law at most
a subsidiary force; and in a number of states no act can be punished
as a crime unless its constituent elements are specifically set forth
in a statute.2
I. Specific offenses.-The prevailing system of defining of-
fenses can be best understood by comparing it with the rule of civil
liability for torts.
It is a general common law principle that an act or other form
of conduct, generically characterized as violating a legal duty, or in
addition also causing loss or damage, constitutes an actionable civil

3The entire Committee was as follows: Ernst Freund, Chairman; judge

John B. Winslow, Judge Orrin N. Carter, Adelbert Moot, Hon. Stephen H.
Allen, Prof. W. W. Hitchler, Win. M. Ivins, R. H. Marr, N. W. MacChesney,
A. Bullard, Dr. Win. Healy, Joel D. Hunter.
There was hardly any opportunity for joint deliberation or for consultation.
An outline of the plan of the report was submitted to the members and approved
by a majority of them. The report was thereupon drawn up by the Chairman
and again submitted to the members, receiving the approval of Messrs. Healy,
Hunter and MacChesney.
Under these circumstances the report can hardly be said to represent the
opinions or the conclusions of the entire committee. Since, however, the report
is in no sense final, this fact is perhaps not of controlling importance. If the
work of the Committee is continued the material and the suggestions contained
in the report may be used for what they are worth.
2
Rev. Stat. Indiana, 1852, ch. 87. Sec. 2: "Crimes and misdemeanors shall
be defined, and punishment thereafter fixed, by statutes of this state, and not
otherwise."
See also 30 La. Ann. 846; 45 La. Ann. 636.

807 :
 ERNST FREUND

injury, and the German Code provides in even more general manner
that whoever intentionally injures another in a manner contrary to
the common standards of right conduct, is bound to indemnify him.
There is no corresponding common law principle or code pro-
vision, to the effect that conduct involving a culpable state of mind
and causing danger or injury to public interests can be prosecuted
as a punishable offense; but certain types of acts designated by readily
ascertainable objective criteria of objects or interests attacked and
of method or manner of injury, are specified as distinctive offenses,
and certain kinds and grades of penalties fixed for their punishment.
. Thus we have the offenses of levying war against the state;
killing a person; forging an instrument; counterfeiting money; brib-
ing an official; swearing a false oath in a judicial or other official
proceeding, etc.
The result of this system of specialization of offenses is that if
a misdeed does not fit into one of the specified categories, the wrong
doer is not criminally liable, however morally culpable he nay be,
or however dangerous or detrimental his act.
III. Generic off enses.-The system of specialization is neces-
sarily a matter of degree, and there are a few offenses in which the
constituent elements are indicated in such a general manner, that
the characteristic features of the system are almost lost. The common
law offenses of nuisance and conspiracy are the most conspicuous
instances in point, but illustrations are also to be found in modern
codes.
In the New York Penal Law (See. 530) coercion is defined merely
by reference to the means used (intimidation by threat or force);
any legal right may be the object attacked; and in the German Code
the offense is almost equally general. In the Indian Penal Code
fraud is defined almost as widely as coercion is in New York, for the
protection- extends to body, mind, reputation or property, i. e. prac-
tically any legal right. Under the German Code the definition of
fraud, while likewise very general, at least requires injury to property
rights and intent of unlawful gain (or under the new draft See. 291,
malice); whereas the American codes have no generic offense of
fraud, but punish merely specified forms, particularly the use of
false pretences for the purpose of obtaining property, or the signature
to some instrument, and certain designated swindling tricks (New
York Penal Law, See. 920-940).
On the other hand, the American codes, following the common
law, treat official misfeasance as a generic offense, while the German
 CLASSIFICATION AND DEFINITION OF CRIMES

codifiers believe that without more concrete specification this would

be too far reaching, and that there is no need for abandoning in this
case the principle of specialization.
IV. Divisions and classification.-With a view of covering the
entire range of possible offenses adequately, many criminal codes adopt
a plan of establishing certain main divisions, regularly on the basis
of the interests -requiring protection, under which the various specific
offenses are classified: offenses against the state or government, ad-
ministration of justice, morals, order, property, person, and perhaps
others.
Except in so far as this plan compels or induces more careful
consideration and definition of each offense, it is of secondary im-
portance, and in America the slight estimate entertained of such a
system is often manifested by discarding it altogether, and arranging
the several offenses alphabetically. This is e. g. the plan of the
Illinois Code. Unless one knows in advance the denomination chosen
for each offense, the alphatbetical arrangement adds nothing to the
facility of reference; it looks cheap and mechanical, and generally
goes hand in hand with inferior care and skill in definition.
The German Penal Code arranges offenses systematically, but
without dividing uip the entire field into, a few main heads. In its
second part ("The several offenses") it deals successively with the
various protected interests or species of punishable wrongdoing, form-
ing altogether twenty-nine subdivisions. Where the subdivision
represents some one protected interest it means that specific forms
of attacking it are mingled out as different offenses; where the sub-
division represents some one species of wrongdoing, thei~e is one gen-
eral offense, and certain modalities of it are merely dealt with by
reason of mitigating or aggravating circumstances as subspecies of
the same offense. Thus there are subdivisions of offenses against
civic rights, against public order, against religion, against life, etc.,
which represent the former type, while other subdivisions deal with
perjury, treason, libel, assault, larceny, etc. It is obvious that this
arrangement represents no special theory of classification but is merely
a matter of convenience.
V. Relation of specific offenses to scientific classification.-While
penal codes differ in their divisions, there is considerable similarity
between them as regards the specific offenses dealt with. This simi-
larity indicates that the selection of certain forms of delinquency as
punishable offenses must to a great extent be based upon inherent
and permanent elements. Criminal conduct, like lawful business,
 ERNST FREUND

proceeds along a limited number of rather well defined lines, and-

although to a less extent-this uniformity extends even to the inci-
dental or secondary features of crime.
Moreover, there is often a distinct correspondence between a
specific offense and a specific degree or type of criminality; thus
forgery and counterfeiting represent different grades of danger;
larceny and embezzlement different grades of guilt; stealing from
the person a distinctive class of offenders. If this is so, it is a legis-
lative mistake to obliterate the distinction, as is done in those American
states in which embezzlement is made larceny. Cases in which distinct
types of offenses do not present marked or different types of crim-
inality (as e. g. robbery and burglary) are the exception rather than
the rule.
So far as there exists such a correspondence between distinctive-
ness of statutory crime and distinctiveness of type, the system of
specific offenses answers the requirements of criminalistic science. It
falls short, where some specific crime is not adequately differen-
tiated, and where proper weight is not given to the more subtle
varities of incident, motive and state of mind which constitute dis-
tinguishable types in the commission of criminal acts.
YI. Illustrations of the shortcomings of specific definitions.-
(1) Homicide.-The -most conspicuous of all forms of crime-homi-
ide-presents the shortcomings of differentiation to a marked degree.
It also illustrates well the difference between criminal codes in this
respect.
Most systems (the South Latin countries form an exception)
grade the offense of homicide into two main denominations corre-
sponding to our murder and manslaughter. The German law does
this according to the presence or absence of premeditation and ad-
heres to this distinction.
The express malice of the common law is probably the equivalent
of premeditation (New York: "deliberate and, premeditated de-
sign"); but the term malice is misleading and in many cases quite
inappropriate. Moreover the common law recognizes also an implied
malice which is no clear and scientific criterion at all, but the mean-
ing of which can be grasped only by a study of decided cases. Illinois
attempts to define implied malice as existing "when no considerable
-provocation appears or when all the circumstances of the killing show
an abandoned and malignant heart." This appears to have been
suggested by the statement of an old text writer (Foster) which
speaks of "plain indications of a heart regardless of social duty and
810
 CLASSIFICATION AND DEFINITION OF CRIMES

fatally bent upon mischief." Of this a modern text writer (MeClain,

See. 522) says that it is .too general to be of any value. If killing
was incidental to the commission of a felofiy, the common law implied
malice, although the killing was unintended.
Under the term "manslaughter" again two entirely different
species of offenses are included, namely killing with design (upon
sudden impulse, on provocation, etc.), and killing without design (by
carelessness,-unless implied malice makes it murder).
Illinois, while making a verbal distinction between voluntary and
involuntary manslaughter, does not differentiate between the two in
the matter of punishment.
New York has a more elaborate classification of homicide, dis-
tinguishing two degrees of murder and two degrees of manslaughter.
The common element is the result: the loss of human life; otherwise
murder in the first degree throws together premeditation and other
specified circumstances of aggravation; murder in the second degree
is characterized by design without premeditation. Characteristic of
manslaughter is the absence of design to effect death, and the two
degrees are differentiated by specified circumstances, abortion being
also designated as manslaughter.
The German Code, further, deals specifically and more leniently
with three types of homicide: duel, infanticide, and killing at the
request of the person killed; the penalties are a great deal milder
than in case of murder, and a penitentiary sentence is allowed (not
required) only in the case of the killing of the newborn illegitimate
edge of the danger of publicity (See. 108, 110).
child by the mother.
No American jurisdiction makes any allowance for any of these
three forms: New York deals with dueling rather by way of ag-
gravation, for killing in a duel fought out of the state by appointment
made within the state is made murder in the second degree, leaving
it to be inferred that killing in a duel in the state is murder in the
first degree.
On the other hand, the German law, in the case of murder, de-
parts from a policy observed with regard to most other crimes, by
failing to provide for the admission of mitigating circumstances; and
by fixing the death penalty for murder exclusively, it shuts out any
individual consideration except through the exercise of the pardoning
power or through the irresponsibility of jury verdicts.
Neither the German nor the American law recognizes motive as
a relevant element in homicide, so that killing to punish- a grievous
811
 ERNST FREUND

wrong (the betrayer of a woman's or a husband's honor-the latter

made allowance for in some Latin codes-), killing to save from dis-
honor, killing to place beyond suffering (-the suggestion of a special
provision was recently rejected by the German Criminal Code Com-
mission3 ) and killing in a civil strife, are all undifferentiated forms
of one crime,-a policy which ignores profound differences of ethical
and popular estimation, and which in its turn is practically nullified
in the administration of criminal justice.
(2) Larceny.-Turningto the most common form of crime, steal-
ing or larceny, it appears that the main line of division in the Anglo-
American law is drawn according to the value of the property stolen
(grand and petty larceny). Fixing the line of decision at a definite
value is so mechanical that it would be intolerable if the correction
were not applied by the findings of juries. Intrinsically, the notion
of petty larceny is sound enough, and the total absence of its distinct
recognition in the German law was found to be a defect, although
the penal code punished ordinary theft only by jail sentence with a
minimum of one day. It is now proposed by the new German draft
to provide for petty larceny in two distinct forms: where articles of
consumption are taken under the impulse of need or of a strong
physical desire, and where things of insignificant value are taken from
members of the same household. Under these circumstances special
private prosecution is required, and in the case of articles of con-
sumption there may be merely fines or detention, and in specially
light cases the penalty may be remitted altogether. No particular
account is taken of misappropriation out of pure mischief or upon a
sudden impulse in the face of special temptation. However, the
German Code grades embezzlement lower in the scale of criminality
than larceny, while American codes put it in the same class, and
sometimes even use the same designation for both offenses.
Special forms of larceny are often differentiated by circum-
stances of aggravations: stealing from a person, stealing at night, or
from a house, etc. The German code recognizes aggravations accord-
ing to the kind of place from which taken, the manner of entry, the
use of false keys, the use of weapons, stealing in gangs, at night
time, etc. The new draft code adds as aggravating elements habitual
or professional stealing. Other aggravations constitute according to
most systems distinct specific offenses (robbery, burglary).
VII. Subdifferentiating specific offenses.-A comparison of the
German with the American law shows a much larger number of cases
3Motive, 1909, p. 843, Juristen-Zeitung 16, p. 1045.
812
 CLASSIFICATION AND DEFINITION OF CRIMES

in the former, in which elements or circumstances indicative of

greater or less guilt are specifically set forth as affecting the grade
of the offense or the measure of punishment.
The new German draft code of 1909 is particularly instructive
in this respect, as will appear by reference to the following examples:
Illegally obtaining official secrets: aggravated by intent to use
to the prejudice of the state; aggravated to a less degree by a knowl-
edge of the danger of publicity. (See. 108, 110.)
Resistance to officer: aggravated by exposing the latter to con-
siderable danger (See. 126); further aggravated by joining forces
with others, and by acting as ringleader (See. 127).
Passing of false or clipped coin: mitigated by fact of it having
been received as genuine (See. 160, 161).
Voluntary manslaughter: aggravated by connection with other
crime (See. 214); involuntary manslaughter, aggravated by neglect
of special duty of attention (See. 219).
Duel: aggravated'by absence of second (hence seconds are not
punished), by culpable provocation, by violation of customary rules';
mitigated by precautions against danger to life (See. 220-226).
Assault: aggravated by use of dangerous instrument (See. 226),
by intent to inflict serious injury (See. 229), by several joining (See:
231) ; mitigated where the result of an affray (See. 233).
Kidnapping: aggravated by purpose of gain or immoral purpose
(See. 235).
Abduction of female: differentiated according as purpose is mar-
riage or immorality (See. 236).
Seduction: punished only if brought about by deception (See.
246).
Lascivious acts: punished only if committed in conneetion with
abuse of position of authority (See. 247).
Crime against nature: aggravated likewise by abuse of authority
(See. 250).
Pandering: aggravated by connection with abuse of authority
(See. 252), also by use of deception, and by making it a means of liveli-
hood (S. 253).
Fraud: aggravated by habitual practice or by making it a means
of livelihood (See. 276) ;--same in case of receiving stolen goods
(S. 281); election fraud: aggravated if committed by one having
official duties (120).
Official peculation: aggravated by false bookkeeping (See. 209).
Engaging upon a criminal course of conduct as a matter of habit
 ERNST FREUND

or means of livelihood aggravates the following offenses: receiving

stolen goods, usury, gambling, coin clipping, pandering, living on the
earnings of a prostitute.
It should be noted that the system in practically all those cases
is first to give an inclusive definition of an offense which covers all
its subspecies, and then to allow the consideration of specified accom-
panying elements.
This is preferable to the method of creating separate offenses
characterized by the presence or absence of specified elements, which
would enhance difficulties of proof and of interpretation and enlarge
the channels of escape on technical grounds.
The careful sense of justice manifested in these discriminations
stands in marked contrast to the readiness with which in American
codes offenses of very different characteristics are thrown together
under a common denomination and grade of punishment; making not
merely embezzlement, but the receipt of deposits by an insolvent
banker larceny; making intercourse with a girl under the age of
sixteen or even eighteen equivalent to rape (statutory larceny; statutory
rape; compare the provision of the New South Wales Crimes [Girls'
Protection] Act of 1910 raising the age of consent from fourteen to
sixteen, but making an exception for intercourse with common prosti-
tutes reasonably believed to be over sixteen); covering under one
common provision simple sexual immorality and the commercial
exploitation of vice, as is done by the Federal White Slave Act;
failing to distinguish between acts of harmless though forbidden use
and acts of defilement and contempt, as dn the new acts regarding
the use of national flag,--all instances which it would be difficult
to parallel- in the criminal legislation of Germany which, generally
speaking, takes great care not to include in the same provision radi-
cally different types of guilt.
VIII. Reasons for the shortcomings in differentiation of crimes.
-Defects of classification and definition may be due to one or more
of the following causes or circumstances:
(1) To mere inadvertence of carelessness in thinking out or
formulating the constituent elements of an offense.
The remedy lies in the improvement of methods of drafting statutes
and can be most readily applied in the definition of newly created
offenses.
(2) To conservatism in following bad or antiquated models and
precedents.
 CLASSIFICATION AND DEFINITION OF CRIMES

The possibility of reform depends upon the ability to demonstrate

that the change will not involve a loss in certainty.
In a number of cases it can be shown that the pretended certainty
of the established definition is illusory.
It might be worth while to inquire carefully whether the sub-
stitution by the Penal Code of New York of the idea of premeditation
for that of malice aforethought as the characteristic element of murder
embarrassed to any extent the administration of criminal justice. A
cursory examination of the Reports fails to indicate any such result.
(3) To popular feeling which being aroused against some type
of offense insists on having the circumstances which have made it
odious set forth in the definition without regard to their scientific
value, and which alo sometimes insists upon having the offense
graded more severely than it deserves (criminal anarchy; violation
of anti-trust act a felony, etc.).
(4) To a deliberate attitude of non-compromise with regard to
certain types of offenses (murder, duel, statutory rape, embezzlement,
perjury).
There are important differences in this respect between Anglo-
American and continental codes; but in practically all systems we find
the same refusal to recognize certain motives for homicide which in the
practical administration of justice lead to non-prosecution, acquittal
or pardon. The refusal of juries to convict shows that the pardoning
power is felt not to be an adequate remedy.
It is true that homicide, in a sense, is not a typical offense. Like
perjury it is a crime, the reaction against which appeals to senti-
ments and instincts of a religious and therefore incommensurable
order.
(5) To the difficulty of finding an adequate formula of defini-
tion owing to vagueness of concepts or to inadequate knowledge.
(Definition of monopoly or of unfair competition).
This may indicate that the subject matter is not ripe for criminal
legislation.
(6) To the practical impossibility of admitting into a criminal
code such a minute differentiation of specific offenses as would do
perfect justice to all relevant consideration of guilt.
This raises the question whether the universally established policy
of specialization of offenses should either be supersedea or supple-
mented by a system of more generic or abstract differentiation.
IX. The relative advantages of specialization and generic dif-
ferentiation.-A purely abstract system of differentiation would Vro-
 ERNST FREUND

ceed upon the theory that the criminality of an act is determined by

the value of interests destroyed, attacked or jeopardized, by the
motives actuating the offender, and by the circumstances from which
the degree of fixity or intensity of criminal purpose may be inferred;
such a system would assign relative grades in the scale of criminality
to these various elements, and judge any given act according to the
manner in which the elements of guilt and danger were found to be
combined in it.
The system of specialization, on the other hand, is founded in
the theory that the point of aggravation at which misconduct becomes
punishable depends upon a public sentiment for which there is no
absolute or scientific criterion; that guilt, injury or danger may be
not sufficiently aggravated to merit the social stigma of criminal
punishment; or that the difficulties of discovering or punishing mis-
conduct may be such as to make prosecution more harmful than im-
punity. The definition of crime is thus determined by variable con-
siderations of policy, and becomes positive, conventional, to a slight
extent even arbitrary.
Undoubtedly from the point of view of perfect and ideal justice
a system of specialization leaves much to be desired. Judged not
only by purely ethical standards, but in its social aspect and effect,
conduct which the criminal law does not reach may be far more
culpable and dangerous than many a punishable offense; and it can-
not be denied tihat these defects and anomalies produce a sense of
-wrong in individual cases as well As generally among serious thinkers,
which has to be reckoned with in estimating the practical effects of
criminal law.
The advantage of the system is that it informs the public of the
province of criminality, indicates clearly the line between distinct
specific offenses to which different grades or limits of penalties are
attached, and removes the excuse for harassing or blackmailing prose-
cutions which a system of undefined offenses invites.
The ready made categories of specific offenses furnish, so to speak,
a familiar currency, the various denominations of which have been
accepted by, and in their turn have shaped, the public sense of right
and wrong. For this reason perfecfion of definition in' criminal law
depends as much upon intelligibility as upon abstract refinement.
Coversely in an abstract system of differentiation a valuable
checking and educative influence of our present criminal legislation
would be lost, for such a system of determining offenses would not
impress the popular mind so strongly as definition of specific crimes.
816
 CLASSIFICATION AND DEFINITION OF CRIMES

And not only would public opinion have to be educated up to

the new standards, but the critical judgment of acts on the basis of
a considerable number of objective and subjective elements of rather
abstract or general description would make considerably greater de-
mands upon the analysis of phenomena and psychological discrimina-
tion than does the present system, and in untrained and unskillful
hands there would be the possibility and certainly the suspicion of
arbitrary decision. With a jury system this objection weighs particu-
larly.
The considerations pointed out preclude the idea of abandoning
absolutely our present system of specific offenses; and the path of
reform lies clearly in the direction of merely supplementing it by
allowing in a fuller measure the consideration of the various elements
that enter into the commission of crime.
And in carrying out such a policy, methods should be adopted
by preference, which merely develop ideas already recognized in
the existing criminal law and accepted by it on the basis of experience
and practice.
As regards the definition of crimes the most promising lines of
reform would therefore seem to be a more perfect consideration of
relevant elements of criminality in connection with specific crimes,
and a system of generic differentiation for supplemental use in
specified departments of criminology.
As regards classification of crimes, a new scheme of division is
suggested which has for its main purpose a better differentiation of
administrative or procedural methods and the definite segregation of
common crimes from other offenses which do not present the same
criminological problems.
X. A more perfect consideration of relevant elements of crim-
inality in connection with specific crimes.-Some illustrations have
been given of the superiority of German over American codes in sub-
differentiating offenses by reference to circumstances affecting guilt
or danger in particular offenses.
It has also been pointed out that perfectly adequate provision
of this kind by further sub-differentiation of specific offenses would
unduly strain the principle of specialization.
The German code concedes the inadequacy of its plan by adopt-
ing in addition a system of mitigating or extenuating circumstances,
which is also found in the other continental codes; and the new Ger-
man draft code of 1909 has besides some very noteworthy provisions
 ERNST FREUND

regarding the effect of certain conditions attending the commission

of crime. upon the grade or scale or penalties.
(1) Afitigating circumstances-the' system of mitigating cir-
cumstances originated with the French Penal Code. France, Belgium
and Italy allow mitigating circumstances to be given effect in all
crimes by reducing the minimum normal penalty; Germany excludes
them in certain offenses (e. g. perjury). The codes do not specify
what constitutes such circumstances. There is no equally general pro-
vision for aggravating circumstances.
(2) Provisions permitting the normal scale of penalties to be
departed from in the presence of specific elements bearing on guilt
are much rarer.
The German code provides in See. 20: "Where the law leaves
the choice between penitentiary and fortress, the sentence may not be
for penitentiary unless it is found that the act proceeded from a
dishonorable state of mind."
The draft of a new penal code (1909) has the following pro-
visions:
See. 18. If the act manifests special atrocity, malice or infamy
(abandoned mind), the court may order special measures of aggrava-
tion in connection with imprisonment.-
See. 81 directs that in admeasuring penalties regard be had to
the general character evinced by the deed, motives, object, impulse
or temptation, personal and property relations, degree of intelligence,
consequences of act and the offender's attitude with regard to them,
especially repentance and the effort at reparation.
Sec. 83 authorizes the court to reduce the penalty below the
minimum (and, where specially provided, to remit it) in especially
light cases, as where the consequences of the act are insignificant,
or the criminal intent slight, or, in view of the circumstances, excus-
able, so that the regular penalty seems unduly harsh.
See. 84. Circumstances of special aggravation exist where the
consequences are exceptionally grave and the criminal intent appears
abnormally strong and wicked. Such circumstances shall, however,
alter the penalty only where the law expressly so provides.
See. 85 extends Section 20 of the present' code (see above) to
all cases of choice between penitentiary and other deprivation of
liberty.
Sees. 67, 68 make special provision for relapse into crime or
recidivision.
See. 89 contains a provision for professional and habitual crim-
inals.
 CLASSIFICATION AND DEFINITION OF CRIMES
The Norwegian Code provides (See. 24) that where the penalty
is imprisonment, detention may be substituted if it may be inferred
from particular circumstances that the act did not spring from a
corrupt mind.
(3) The America codes have neither any provisions like these
nor any system of mitigating circumstances. A very liberal range
of minimum and maximum penalties serves in the case of many
crimes to some extent aa a substitute, particularly under the theory
if not under the practice of modern indeterminate sentence laws,
but it must be observed that there is very commonly a minimum
penalty of one year, and in many cases that there is provision only
for penitentiary sentence, so that there is no possibility of substitut-
ing the very much lighter form of imprisonment in jail-a very
common German provision in case of mitigating circumstances.
XI. A system of generic differentiation for supplemental use.-
The most satisfactory solution of the problem would seem to lie in
the further expansion of the system of mitigating circumstances -and
of provisions for altering penalties.
The expansion should take the form of a careful elaboration of
a complete system of relevant elements of criminality, and a general
provision that in adjudging specific offenses, they should in some
way be taken into account.
While the usual definitions of specific offenses confine themselves
to stating the object attacked and the method of attacking it, and
do not in the majority of cases, give any place in the definition to the
incidents which individualize crime, the proposed system would at-
tempt to do full justice to the latter, and utilize them for a more
adequate classification of offenses. Motive and circumstance would
play as important a part as subject matter and form of a delinquency.
See. 81-89 of the New German Code of 1909 (above referred to)
indicate the general scope of such a system. The problem would be
to bring together, as far as can be done, all relevant elements bearing
on guilt, and evaluate them in a satisfactory manner; so that it could
no longer happen that owing to lack of provision in the criminal
code the law in dealing with a crime obliterates the most vital dif-
ferences bearing upon its true nature.
Under such a system the infinite varieties of the crime of murder
would for the first time find some legal recognition, and cognizance
might also be taken of the fae-important as regards reform meas-
ures, etc.-that the problem presented by the crime of murder differs
radically from that of theft, robbery or burglary. It might be possi-
 ERNST FREUND

ble to avoid the unfortunate alternative between excessive, inappro-

priate and futile punishment, and absolute acquittal.
Applying such a system, it would make a difference in the crime
of perjury whether its object and effect was simply to shield a guilty
person, or to procure an unlawful gain, or the conviction of one who
is innocent. Since our laws permit the defendant in a criminal case
to testify under oath, it is manifestly unreasonable not to allow the
temptation to count in his favor, for the requirement of an oath under
such circumstances is almost a direct invitation to perjury.
Again, if bigamy is committed with the knowledge and consent
of the three parties concerned, it is not the same offense as if the
other party to the legal marriage is not a consenting party, still
less if the other party to the illegal marriage is ignorant and de-
ceived; and this difference seems to be recognized in a few codes
(Holland, Hungary, Norway).
Surely the differences thus pointed out by way of illustration
are relevant; yet the prevailing system of criminal law ignores them;
and if they are taken into account as mitigating circumstances, or
in fixing the penalty at its legal minimum, there is nothing of record
to show that this was not due to favor or sympathy. The offender
stands convicted with all the possible implications which the statutory
iefinition of the offense permits, and the differential circumstances
of the commission of the offense neither entitle nor expose him to
differential treatment after conviction.
If it is proposed to supplement the prevailing system of specific
offenses by a collateral system of more generic differentiating ele-
ments, the question mnst also be approached what concrete legislative
form such a system is to take.
The three points t6 be considered would be: the elements to be
specified as relevant in differentiation; the relative value to be at-
tributed to them; and tjie manner of their application to particular
offenses.
The first two points would present a problem of criminology,
the last one a problem of criminal law and procedure.
Assuming the opossibility of reaching satisfactory results with
regard to the first two points, should the offender have a legal right
to have all elements submitted to the jury with appiropriate instruc-
tions? It is easy to see that strong objection would be made to such
a complication of the criminal law, and that with such consequences
in view, an agreement upon the elements to be recognized and their
effect would be most difficult to obtain.
820
 CLASSIFICATION AND DEFINITION OF CRIMES

It would therefore be wiser and more conservative, for the be-

ginning at least, to operate such a system without altering legal rights.
This could be done in all cases where at present measures are per-
mitted with regard to offenders, in respect of which technical claims
of illegality or unconstitutionality cannot be raised, or can be dis-
posed of without difficulty and without injustice to substantial rights.
More particularly such a system might be applied:
(1) First and foremost, for the purpose of keeping criminal
statistics. Here the administrative obstacles to reform would be
least. On the other hand, it is here that there is the most urgent
demand for scientific definition and classification. In view of the
desirability of uniformity for scientific purposes, it would be legiti-
mate to aim at national, or even international agreement for such a
scheme of classification.
(2) For the purpose of dealing with juvenile delinquents; since
here there is already a tendency to supersede the ordinary categories
of offenses by the more subjective circumstances and motives of the
individual act.
(3) For determining methods of treatment after conviction,
i. e. after the system of specific offenses has fully accomplished its
purpose of protecting the liberty of the individual against an undue
or arbitrary extension of punishable acts.
It is true that the convict as well as the accused, is entitled to the
guarantees of due process and therefore no circumstances should be
allowed to count in aggravation of punishment that have not been
charged and established in accordance with established rules of criminal
procedure. But there is no reason why the fullest effect should not
be given to mitigating circumstances irrespective of any technicalities
of indictment, trial or evidence.
Certainly there could be no objection to applying the proposed
scheme of differentiation to the administration of indeterminate sen-
tence laws, or to the exercise of the pardoning power.
Combined within limits so conservative, even a radical plan of
reform need not arouse any strong opposition. In any event, the
details of such a plan would be necessarily matter of further thought,
suggestion and criticism. The primary question to be determined is
whether something like the scheme here proposed would secure better
consideration for phases and incidents of criminality now ignored
or insufficiently recognized by our codes.
821
 ERNST FREUND

TENTATIVE CLASSIFICATION OF CONSTITUENT ELEMENTS

OF CRIME RECOGNIZED IN MODERN CRIMINAL CODES.
A. Interest attacked or endangered.
1. Safety of the State.
2. Ordinary safety of person or property.
3. Purity of justice and administration.
4. Maintenance of government authority.
5. Common peace, order and decency.
6. Purity of sex relation.
7. Conformity to legislative policy.
B. Forms of delinquency.
1. Disorderly conduct.
2. Omission of duty.
3. Disobedience.
4. Abuse of authority.
5. Corruption or seduction.
6. Betrayal or breach of trust.
7. Coercion.
8. Threat.
9. Violence.
10. Stealth.
11. Fraud or falsehood.
12. Procurement, aid, attempt.
C. Circumstances mitigating or aggravating guilt.
(a.) Objective.
1. Value of object, extent of danger or injury.
2. Remoteness or proximity of danger.
3. Specific relation to object or victim.
4. Numbers.
5. Openness or secrecy.
6. Special contrivances.
7. Atrocity, cruelty, helplessness of victim.
(b.) Subjective.
1. Motive (gain, malice, fear, distress, altruistic motive).
2. Abnormal state of mind.
4. Vagueness of intensity of purpose.
4. Temptation or provocation.
5. Repentance and reparation.
6. Habit.
7. Profession.
XII. A more perfect classification of crimes.-It is suggested
that crimes be classified according to the great categories of the in-
terest attacked or violated, viz.: the safety of the state and main-
tenance of the authority of the government ;--the conformity to legis-
lative policy ;--the purity of justice and administration ;-the main-
tenance of peace, security and good order ;-the purity of sex relation;
-the ordinary or common safety of person and property; making
the following great classes:
(1.) Political offenses.
(2.) Statute violations.
(3.) Administrative crimes.
(4.) Police offenses.
(5.) Crimes against morality.
(6.) Common or ordinary crimes.
822
 CLASSIFICATION AND DEFINITION OF CRIMES

(1.) Political offenses present a problem to be dealt with by the

supreme organs of the government; for they are indicative of a
state of disturbance of the political and social equilibrium, to cope
with which the ordinary machinery of criminal justide may be ill
adapted or powerless, and the ordinary penalties of the law singularly
inappropriate and futile. Offenders of this class will be more effectu-
ally proceeded against if the consequence of a conviction will not be
to stamp them as ordinary criminals.
We have a precedent for the distinctive treatment of political
offenders in the proceeding by impeachment. This, however, is un-
satisfactory and objectionable because the guaranties of impartiality
are absent. Trial of such offenses by the supreme court with a jury
(for which a constitutional amendment would be necessary) would
be more appropriate.
These observations would not apply to offenses which, while
directed against the safety of the state, would proceed from other than
political or similar motives. The person who betrays the interests of
his country for a money consideration is a common criminal and
should be treated as such.
(2.) The term "statute violations" is chosen as a convenient
designation for the offenses against the penal classes which are found
in every one of the many regulative statutes which annually emanate
from our legislative halls.
Frequently these statutes represent a controverted, if not dubious,
policy imposed by a majority upon a resisting minority, sometimes
worked out without due care or deliberation; the interests opposing
them, if not legitimate, have the adhesion of large and not neces-
sarily lawless classes ;--not uncommonly in the past these interests
represented liberty and progress, and occasionally they do now.
Experience has demonstrated the futility of attempting to deal
with offenders against such statutes as common criminals, and the
general policy of legislation is to rely upon relatively mild penalties,
and in many cases to create special organs for their enforcement.
Even as a matter of outward arrangement in the statute book, the
great mass of penal provisions accompanying economic and social legis-
lation does not appear as part of the criminal law.'
It is very probable that the system of enforceiiient through in-
junction will occupy an increasingly large place in this kind of legis-
lation; and even if the violation of these injunctions will ultimately
'In New York they are to a considerable extent incorporated in the Penal
Law.
 ERNST FREUND

come to be adjudged by juries, there will be in this method of enforce-

ment a definite separation from ordinary crimes.
(3.) A general category of administrative crimes is at present.
not generaly" recognized. It deserves, however, consideration whether
a separate place should not be assigned to them in a criminal or puni-
tive system.
Taking perjury and tax defraudations as types of this class (it
being assumed that the object of the crime is not to jeopardize other
private interests), the distinctive feature of these offenses is that they
are more readily committed than offenses against person and property.
Unfortunately, public sentiment is laxer in defense of public
than of private interests; and where loose practices have become
entrenched, the policy of severe and dishonoring penalties, so far
from aiding law enforcement, makes convictions difficult and rare.
It might therefore be advisable to develop further with regard
to this class of offenses a system of repression that has the sanction
of traditional practice in connection with the public revenue; namely,
the system of summary administrative penalties. In the case of
perjury and bribery this would have to take the form of contempt
process. In certain British colonies perjury is already dealt with on
this basis; and the adoption of a similar system in this country would
present no difficulties in case of perjury committed in court. A more
general extension of contempt process may offer constitutional diffi-
culties. It is, however, believed that these can be avoided by giving
an unrestricted right of appeal to the courts.
(4.) Police offenses are both in legislation and administration
often distinguished from common crimes. Either the interest affected
or the guilt involved, or both, are less serious or urgent. The power
or even policy of repression is to a considerable degree delegated to
local authorities, and summary powers of abatement may be appro-
priate. While there are cases on the boundary line of other cate-
gories (obscenity, immorality; illegal sale of liquor, disorderly saloon
or drunkennesses), the province of this division can be marked out
with tolerable certainty.
(5.) Crimes against morality differ from common crimes in
various respects:
(a) They may be committed without invading any right, and
without touching directly any public interest.
(b) They are more frequently than other crimes the product
of morbid impulse or abnormal instinct.
824
 CLASSIFICATION AND DEFINITION OF CRIMES

(c) The prosecution is peculiarly liable to be attended by un-

desirable practices of blackmail, etc.
(d) Owing to the difficulties of evidence the vast majority of
crimes of this class remain unpunished.
For these reasons there is not entire unanimity of opinion whether
these crimes should be prosecuted where private rights, public order
or public institutions are not at least in some degree involved, i. e.,
where the only parties concerned are consenting, above the age of
discretion, and no outside interest is at stake (incest, crime against
nature, fornication, perhaps adultery, as contrasted with rape, crimes
against children, and bigamy). Italy punishes only where there is
some element of publicity or scandal.
Unless these considerations are deemed to be of controlling in-
fluence there is no particular reason for placing crimes against moral-
ity in a separate class from other common crimes.
(6.) There remains the class of common or ordinary crimes
which constitute the main preoccupation of criminal legislation and
criminal justice. But for them, there would be no social problem of
crime, no elaborate machinery of prosecution and punishment. To
prevent and repress them is the primary function of the organized
community.
It is also an important fact that there is practically no division
of opinion regarding the necessity of repressing these common crimes;
for this fact raises a question of an administrative nature which may
be worthy of serious consideration:
The enforcement of laws enacted to carry out some policy that
is controversial in the sense that large classes of the population are
hostile or passively resistant to it, necessarily exposes the prosecuting
office to intrigue and devious influence, and, in a popular system of
government, throws it into polities. Any amount of well meaning
effort at reform will not alter this situation.
From this results a weakness and time serving tendency of the
prosecution and, especially also of the police, and this in turn reacts
unfavorably upon the repression of ordinary crime.
Were offenses clearly differentiated on the basis here proposed,
the repression of the common crimes against person and property
might be placed in the hands of officials absolutely divorced from
the enforcement of widely controverted or resisted policies, and put
on a professional and scientific basis.
It may be suggested that the task of classification does not end
with the establishment of the category of common crimes, but really
 ERNST FREUND

begins there. Indeed the attempts which criminologists have made

to classify crimes have practically confined themselves to the ordinary
crimes against persons and property, and against morals. The basis
of classification has usually been the type and character of the offender
(American Journal Criminal Law 1, 906: born, habitual, occasional ;-
Motive Vorentwurf, 1909, 1, 338: occasional, capable of reform, in-
capable of reform).
If such a classification is to be utilized for procedural or punitive
differentiation, it must not be too controversial for ready application
in any particular case; and if any basis of classification will ever be-
come scientifically established, it will speedily impose itself upon the
administration of justice.
This particular problem of classification is therefore primarily
psychological, and not juristic; and no adequate justice can be done
to it in this report.
CONCLUSION
It is fully recognized that the proposed reclassification of crimes
is too far reaching and presents too many controversial problems to
constitute for the immediate future a practical legislative program:
it is offered merely as a suggestion for consideration and criticism.
Unless it can serve some practical purpose, by way of adminis-
trative differentiation or otherwise, a logically perfect classification
is not a matter of supreme importance.
A complete system of the relevant elements of guilt is, on the
other hand, a prime desideratum of criminal law reform. As pointed
out before, the problem of defining the elements to be specified as
relevant in differentiation and of assigning to each its relative value
in determining guilt and punishment is one for the solution of which
the legislator must look to the trained criminologist.
If the general idea here suggested is a sound one, it should be
pursued by working out some such scheme as is indicated in the note
to No. 11. Only further detailed work can show, whether, to what
extent, and in what form the plan is practicable.